HICKEY v. COMMANDANT OF THE FOURTH NAVAL DIST.

Thomas R. HICKEY
v.
COMMANDANT OF the FOURTH NAVAL DISTRICT and W. Graham Clayton, Jr. *,Secretary of the Navy and Harold Brown, Secretary of Defense.

The opinion of the court was delivered by: LUONGO

Thomas R. Hickey, a seaman currently assigned to the Naval Support Activity at the Philadelphia Naval Base, petitions this court for a writ of habeas corpus. See generally 28 U.S.C. § 2241 (1976). He challenges as violative of Navy regulations and the due process clause his call to two years of active duty in an enlisted status, a commitment incurred when he was disenrolled from the Naval Reserve Officers Training Corps (NROTC) Program at Villanova University in December 1976. In addition, he alleges that under applicable Navy regulations his high blood pressure disqualifies him for service; consequently, he asserts that his certification by the Navy physician as medically fit for active duty was also in violation of the regulations. On September 13, 1978, I ordered the respondents to show cause why the writ should not be granted,
*fn1"
and a hearing was held on September 28, 1978. After careful consideration of the issues raised at the hearing and elaborated by the parties in their memoranda of law, I am persuaded that the writ must be denied.

The facts in this case are largely undisputed. On January 11, 1973, Hickey volunteered for training in the NROTC Scholarship Program and executed an NROTC Scholarship Agreement. This agreement outlined Hickey's obligations as a program participant and warned that failure to complete the four-year course of instruction might result in his being called to active duty in an enlisted status. Defendants' Exhibit No. 3, P 1(d) at 1. On September 7, 1973, Hickey signed his enlistment contract and received his appointment as a midshipman in the NROTC unit at Villanova University. Defendants' Exhibit No. 1 at 12-13, 37.

During his sophomore year, Hickey began to experience academic difficulty, and a letter dated May 30, 1975, from the commanding officer of Villanova's NROTC unit informed Hickey that he was being placed on academic probation for the Fall 1975 semester. The letter noted several problems reflected by Hickey's academic record, including his failure in one course and his deficient quality point index. The unit commander also expressed his dissatisfaction with Hickey's progress toward fulfilling his degree and his NROTC curriculum requirements and reproved Hickey for his "extensive participation in extracurricular theatrical productions." After directing Hickey not to take drama courses or to work with the theater group during the period of his probation, the unit commander admonished Hickey to review his priorities and to limit his activities to those consistent with his ability to satisfy his NROTC and college degree requirements. The letter advised Hickey that failure to correct the deficiencies might result in a leave of absence status with the concomitant loss of financial benefits for the Spring 1976 semester and that low academic proficiency might thereafter warrant disenrollment. Defendants' Exhibit No. 3 at 3. See generally Defendants' Exhibit No. 5, PP 211, 212(c) at II-14 to -17 (corresponds to 32 C.F.R. §§ 711.211, .212(c) (1977) ).

There exists a second, more compelling reason for rejecting the Navy's contention. Hickey was obviously unaware that the order for his activation actually came from the Assistant Secretary. Apparently, only the internal memo from the Chief of Naval Personnel to the Secretary of the Navy evidences the Assistant Secretary's stamp of approval. See Defendants' Exhibit No. 3 at 19. Obviously, this information was not communicated to Hickey. Indeed, the papers forwarded to the Villanova NROTC unit commander and to Hickey bore the information that the Secretary of the Navy had approved his disenrollment and activation. See id. at 18, 20. I therefore agree with petitioner that the Navy's argument on this score is clearly untenable.

I do not agree, however, that recognition of the call to active duty as a final order of the Secretary automatically warrants circumvention of the BCNR. Hickey seeks not only release from active duty but also an order directing his honorable discharge from the Navy. Clearly, the BCNR is empowered to consider and act upon such requests. See, e.g., Seepe v. Department of the Navy, 518 F.2d 760, 762-63 (6th Cir. 1975). Moreover, the Board may not deny an application on the ground that action by the President or the Secretary is the source of the injustice or error. 32 C.F.R. § 723.3(e)(2) (1977); Cf. Hodges v. Callaway, 499 F.2d 417, 422-23 (5th Cir. 1974) (referring to analogous Army Regulation). I conclude therefore that resort to the BCNR is appropriate in this case and that by ignoring this available route, the petitioner has failed to exhaust his administrative remedies.

The Supreme Court has subsequently reinforced the notion, implicit in Nelson v. Miller, that the decision to require exhaustion as a predicate to judicial review of the merits of a serviceman's complaint is one committed to the discretion of the court. Recognizing that the doctrine of exhaustion "is, like most judicial doctrines, subject to numerous exceptions," the Court advised that its application in specific instances "requires an understanding of its purposes and of the particular administrative scheme involved." McKart v. United States, 395 U.S. 185, 193, 89 S. Ct. 1657, 1662, 23 L. Ed. 2d 194 (1969) (citation omitted). The Court reiterated that principle in Parisi v. Davidson, 405 U.S. 34, 37, 92 S. Ct. 815, 818, 31 L. Ed. 2d 17 (1972), and explained that "(t)he basic purpose of the exhaustion doctrine is to allow an administrative agency to perform functions within its special competence to make a factual record, to apply its expertise, and to correct its own errors so as to moot judicial controversies."

Examined against this background, several factors in the case before me militate against abstention, at least with respect to the challenge to the initial activation order. The most obvious is the delay involved in an appeal to the BCNR. As the Navy conceded during the hearing, proceedings before the Board could take as long as 18 months before the claim is finally resolved. This delay bespeaks the potential for irreparable injury to the petitioner who is currently fulfilling the active duty obligation here challenged. This consideration differentiates Hickey's position from the paradigm case in which resort to the service's Board for Correction of Military Records was required as a prerequisite to judicial review. See Hayes v. Secretary of Defense, 169 U.S.App.D.C. 209, 515 F.2d 668, 674-75 & n.30 (1975). Hickey seeks to obtain rather than to prevent a discharge from the service. Refraining from judicial action in the latter situation rarely involved the prospect of irreparable injury. Moreover, if the party seeking to remain in the service were discharged before the Board could review the claim, the Board could grant the serviceman full retroactive relief. See id. at 674 n.30. Here, however, even if the Board were to decide in Hickey's favor, the only relief forthcoming would be an honorable discharge. The Board could not adequately compensate Hickey for the time spent in active enlisted service pursuant to an order that was issued in violation of the regulations.

Viewed against these criteria, the procedures employed by the Navy in Hickey's disenrollment and activation meet minimum due process requirements. It is a well-established principle that "(persons) in the military do not enjoy the full range of rights enjoyed by civilians . . . ." O'Mara v. Zebrowski, supra, 447 F.2d at 1089; See Hagopian v. Knowlton, supra, 470 F.2d at 208; Keister v. Resor, supra, 462 F.2d at 474; Sullivan v. Mann, supra, 431 F. Supp. at 698. Hickey voluntarily entered the NROTC Scholarship Program and was apprised at the outset that failure to complete the four-year program might result in an obligation to serve on active duty in an enlisted status. Cf. O'Mara v. Zebrowski, supra, 447 F.2d at 1089 (voluntary enlisted reservists constitute class distinct from inducted servicemen). He was on notice throughout the probationary period and while on leave of absence that continued unsatisfactory performance of his NROTC obligations might result in his disenrollment and call to active duty. See discussion Supra (detailing correspondence from unit commander). Notwithstanding these repeated warnings, Hickey insists that the notice requesting his appearance before the Board of Review did not adequately inform him of the purpose of the hearing. I cannot agree. The notice not only specifically stated that the Board was being convened to evaluate Hickey's performance and to make recommendations about his future participation in the NROTC but also referenced the May 13, 1976, letter from the unit commander which had noted Hickey's marginal performance and had cautioned that compliance with the physical fitness standards was but a minimum requirement for retention. See Defendants' Exhibit No. 3 at 7-8. In my opinion, the notice was sufficiently explicit and Hickey could not reasonably have failed to understand the purpose of the hearing or to comprehend what was at stake.

Although the NROTC regulations do not precisely provide for appeal, they do permit the NROTC student who has been recommended for disenrollment to submit a written statement in response to the Board's findings. See generally Defendants' Exhibit No. 5, P 213(q) at 11-24 (corresponds to 32 C.F.R. § 711.213(q) (1977) ). This statement forms part of the record that is ultimately reviewed by the Chief of Naval Personnel before he makes his recommendation to the Secretary of the Navy. See generally Defendants' Exhibit No. 5, P P 213(g), 214(e), at II-21, -25 (corresponds to 32 C.F.R. §§ 711.213(g), .214(e) (1977)). Hickey contends that he was substantially prejudiced because he was denied the opportunity to respond to the unit commander's recommendation of disenrollment and activation. I cannot credit this assertion, for in my view, the statement of the unit commander simply endorsed the Board's findings and added nothing to the record. Nevertheless, Hickey argues that he should have been afforded the opportunity to contest the recommendation that he incur an active service obligation and suggests that the Secretary's failure to promulgate standards governing activation of disenrolled cadets worked to his detriment. With respect to the latter contention, the Secretary is not required to outline in detail the rules governing decisions committed to his discretion. See West v. Chafee, supra 560 F.2d at 947. With respect to the former, I cannot conceive how Hickey would have benefitted had he been provided the opportunity to respond to the recommendation that he be called to active duty. The only criterion limiting the Secretary's exercise of discretion in imposing an active duty commitment is disenrollment, and Hickey was permitted an adequate opportunity to present his explanation on that score.

Hickey's final argument relates to his certification as medically fit for active duty. He cites his various blood pressure readings and asserts that under the medical standards governing entry into naval service, he should have been disqualified for active duty. Defending Hickey's medical certification, the Navy relies upon a different set of standards, the retention standards, which list as a cause for "rejection for appointment, enlistment, and induction . . . (hypertension) evidenced by preponderant diastolic blood pressure over 90mm or preponderant systolic blood pressure over 159mm at any age." Compare Petition for Writ of Habeas Corpus, Exhibit B, article 15-16(2) (j) (entry standards) With Defendants' Exhibit No. 4, article 15-27-2-19(b) (retention standards). Unlike the challenge to the regulation relating to disenrollment and activation, the balance here tips in favor of requiring the petitioner to pursue his administrative remedies. Not only is there sufficient confusion concerning which medical standards govern in this situation but it is not at all clear whether the standards outlined in each article are absolutely disqualifying or permit the exercise of discretion. See Defendants' Exhibit No. 4, articles 15-2 to -4. A question also arises with respect to the meaning of the word "preponderant." I cannot say whether the examining physician may consider only those readings taken on a given occasion or whether he must include readings taken during prior examinations. Furthermore, it is unclear whether the physician may rely upon one reading that is within the articulated limits or whether the inclusion of the word "preponderant" implies that the physician must take several readings. Because the Navy is better able than I to make these determinations, the petitioner must first avail himself of existing in-service procedures.

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